Former President Donald Trump has maintained that Special Counsel Jack Smith’s appointment to oversee the investigations into Trump’s handling of classified documents and January 6th was improper.
Trump’s lawyers filed motions to dismiss the cases arguing Smith lacked authority due to not being Senate confirmed, and that Trump had absolute immunity from prosecution and the right to retain documents as president.
They claimed Garland appointing Smith violated the Appointments Clause.
Trump’s attorneys wrote, “The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States.”
“As such, Jack Smith lacks the authority to prosecute this action,” the filing continued.
The attorneys added, “Nor does he have authority to conduct the underlying prosecution. Those actions can be taken only by persons properly appointed as federal officers to properly create federal offices.”
The motion alleges, “Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. And that is a serious problem for the American rule of law—whatever one may think of the defendant or the conduct at issue in the underlying prosecution.”
Academics and a former Reagan AG also filed a Supreme Court petition saying Smith was a private citizen without authority to be special counsel.
While the DC Circuit rejected Trump’s immunity claim, it did not remand the case for trial pending Supreme Court review.
Smith has pushed for a quick resolution of the immunity issue to allow the trial to proceed, but the Supreme Court previously rejected an early review of the question.
